Montgomery County was the first county to enact paid sick leave laws to the employees within the county. Shortly thereafter, Cook County, Ill. enacted similar laws. Montgomery County’s new Sick Leave Laws awarded sick leave to most employees on October 1, 2016. Then on October 28th, the Montgomery County Council updated the new law to include additional provisions. The purpose of this article is to give an overview of the new and recently updated sick leave ordinance and what employers need to know to be in compliance.

Overview of the Montgomery County Earned Sick and Safe Leave Law

Montgomery County splits employers into large and small employers and the required amount of leave provided to employees depends on the size of the employer. Large employers are those businesses who have 5 or more employees. Small employers have 1-4 employees. Employees earn one hour of paid sick leave for every 30 hours of worked time. Employees of large employers are awarded up to 56 hours of paid sick leave in a year. Small employers must also allow employees 56 hour of leave, however, only 32 of those 56 hours of earned leave must be paid. The other 24 hours of earned leave can be unpaid leave hours.

Amount of Earned Leave

1-4 Employees

5 or more Employees

Up to 32 hours paid leave

Plus up to 24 hours unpaid leave

Up to 56 hours of paid leave

Effective immediately employers must comply with the new updates to the law. Overtime exempt employees are assumed to work 40 hours a workweek.

Employees are allowed to roll up to 56 hours of unused and accrued sick and safe time to the following year. However, employers can restrict the total amount of sick and safe time used to 80 hours in a year. A year can be a calendar year, a fiscal year, or any 12 month period starting at any time during the calendar year.

Covered Employees under ESST

Any person who works in Montgomery County for more than 8 hours each week is eligible to earn Sick and Safe Time Leave. That includes domestic workers, and all employers who have at least 1 employee. Employers must allow employees to start accruing sick leave on the first day of employment. However, employers can restrict the use of sick leave for the first 90 days during the probationary period of employment. Its important to note that employers include individuals and any person who hires another for work. That means that if an individual hires a babysitter for a regular schedule of 8 hours or more a week, that babysitter is covered under the Earned Sick and Safe Time Act.

Exclusions to Earned Sick & Safe Time

The only exclusions to the Earned Sick and Safe Time Law is Federal Government employees or employees of any other local government or state government. Montgomery County employees are not exempt from the law and do earn sick and safe time leave. Also excluded are independent contractors that are not considered employees. Employees without a regular work schedule, who contact the employer for work assignments and gets scheduled to work within 48 hours, and employees who are under no obligation to work unless the employee contacts the employer are not considered employees for sick and safe time accrual.

Allowable Uses for Earned Sick and Safe Time Leave

Employees may use their sick and safe time leave for a number of reasons. Sick and safe time cam be used both for employee needs and for the employee’s family member’s needs. Sick time uses include mental and physical illness injury and health condition. It also includes preventative care and closures of work places or places of care due to public health emergencies. Schools or daycare centers that close due to a public health emergency are an allowed reason for the employee to take of time to care for their child or family member. In addition if the family member or employee has had exposure to a communicable disease, as determined by a public health official, sick time can also be used. Safe time can be used for victims of domestic abuse, sexual assault, and stalking. Employees can use safe time to seek medical attention for recover from a physical or psychological injury.

To care or treat an employee’s or employee’s family member’s mental or physical illness, injury or condition

To obtain preventative care for the employee or for the employee’s family member

If the employee’s work or place of business has been closed due to a public health emergency

If the child care center or school of the employee’s family member has been closed by a public health official due to a public health emergency.

To care for a family member if a public health official or health provider has determined that the family member’s presence in the community would jeopardize the health of others because of the family members exposure in a communicable disease.

If the employee or employee’s family member is a victim of domestic abuse, sexual assault, or stalking:

leave is used to seek medical attention for a physical or psychological injury,

to seek assistance from a victim services organization,

for legal services including civil and criminal

To seek and relocate, both temporarily or permanently, location

In addition there have been two additional allowable uses of the Earned Sick and Safe Time. Those additional reasons are:

7) For the birth of a child, or placement of a child with the employee for adoption or foster care

8) To care for a newborn, newly adopted, or newly placed child within one year of adoption, birth, or placement.

These new reasons are effective immediately and employers must allow employees to take their earned time off for the new reasons.

Family Member Definitions

Montgomery County recognizes relationships that are biological, adopted, foster, step, legal guardian or ward. Additionally children for whom the employee has physical custody or are the primary caregiver are counted as family. Family relationships include, child, parent, parent in law, sibling, sibling’s spouse or in locos parentis when the employee was a minor. Grandparents, grand children, grandparents spouses, are also included as family relationships.

Sick Leave Bank and Usage

Employers can allow employees to use sick and safe time at any increment that the employer wants to set as long as the employer doesn’t require more than a minimum of 4 hours each day to be taken. If the employer’s payroll system allows for absences from work in smaller increments such as 15 minutes, then the employer can allow for sick leave to be taken in the smaller increments.

If an employee leaves and returns to employment with the same employer within a 9 month period, then the employee is eligible for reinstatement of all accrued, but unused sick and safe time they had when they left the employer. The only exception to the sick leave bank is if the employee would not be eligible for unemployment due to leaving the employer voluntarily without good cause. In that case, the employer would not have to reinstate the employee’s accrued leave time.

Front Loading

Employers are allowed to front load the full amount of 56 hours of leave at the beginning of the year. If the employer front loads the paid leave, then the employee is not eligible to roll unused leave hours onto the following year. Front loading the leave at the beginning of the year also makes it possible to deduct unearned leave from an employee’s last pay check. If the employee has used more leave than they have earned, and if they have signed an agreement to pay back the leave, then the employer can deduct the amount of unearned leave from the employee’s last paycheck. The agreement would typically be contained in the employment contract or annual employee handbook agreement.

Coordinating with Paid Time Off Policies

Existing paid time off policies can be used to satisfy the Montgomery County Earned Sick and Safe Time laws as long as employees are able to accrue sick and safe time at the same rate or faster than the law provides. Employees must also be able to use their paid time off for the reasons stated in the law. Employers can provide more generous policies and if they do, the employer is not required to increase the amount of sick and safe time to match the paid time off.

Reasonable Notice and Documentation

Employees are required to give notice to the employer as soon as is practicable to do so and should also notify the employer of the expected duration of the leave.

If an employee misses more than 3 consecutive days of work for sick and safe time leave, then the employer is allowed to request reasonable documentation that the employee used the leave according to the law’s provisions. Employers can’t ask for details about the employee’s use of leave

Anti Retaliation

The County Office of Human Rights is responsible for enforcing the sick leave law. The remedies defined in the Earned Sick and Safe Leave Act are fairly broad including the payment of damages and “any other relief”. That includes equitable relief and any other relief.

Notification and Records

Employers must notify employees of a written statement of earned sick and safe time each payroll. That requirement can also be met through an online system that the employees can access.

Employers must also post notice of Earned Sick and Safe Time under Montgomery County law. Employers can post notice at each workplace with employees, provide a notice in the employee handbook, and provide a copy of the notice at the time of hire for new employees.

Employers are required to maintain records for a minimum of 3 years. The record must maintain the accrued and used sick and safe time for each employee. It is more important than ever before than employers turn to automated record keeping and timekeeping technologies to maintain accurate records. Manual timekeeping records make it more easy for disputes to arise and allegations of violations of the Montgomery Laws.

For individual employers, notice should still be posted and given to the employee. Its also vital that employers maintain records. Even in the case of a family hiring a regular care or baby sitter in their home, records of hours worked, accrued sick time, and used and paid for sick and safe time should be maintained. Fines and penalties can add up quickly to a family or individual employer who assumes that because they aren’t a business, this law doesn’t apply to them.

Let SwipeClock Help

Businesses who have employees in Montgomery County may have to comply with multiple conflicting ordinances defining Sick leave accrual and usage laws. Additionally, these businesses have to also comply with Federal Overtime Laws, the Family Leave Medical Act and any other national or local laws that are enacted. SwipeClock provides a comprehensive array of workforce management and time tracking tools that can help businesses to more easily stay in compliance with local and national laws. Records are effortlessly kept for years and accrual is automatically tracked and reported to employees according the state and city laws. Additionally, with geo-timekeeping clocks, businesses can effortlessly track time worked in specific cities to ensure compliance.

About SwipeClock

SwipeClock is a leading provider of cloud-based integrated workforce management solutions that include automated time and attendance, advanced scheduling, and leave management capabilities. The company’s products, including TimeWorks Plus, Time Simplicity, and Workforce Management Clock enable employers to manage their most important and expensive asset-employees-by transforming labor from a cost of doing business to a competitive advantage. SwipeClock’s workforce management solutions are sold through over 850 partners that empower more than 26,000 businesses to lower labor costs, comply with regulatory mandates, and maximize their profits. For more information, please visit www.swipeclock.com, http://www.swipeclock.com.